Daily
summary of discussions related to Article 12
FREEDOM FROM VIOLENCE AND ABUSE

UN Convention on the Rights of People with Disabilities
Third session of the Ad Hoc Committee - Daily Summary
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Volume 4, #3
May 26, 2004

AFTERNOON SESSION
Commenced: 3:16 PM
Adjourned: 5:50 PM

Ireland explained that the EU does
not favor merger of Articles 11 and 12 because violence and abuse is
broader than torture. Although the EU agrees with the first sentence
in 12.1, it is more appropriate to the preamble. To emphasize obligations,
Article 12 should begin with States Parties duties to protect PWD from
all forms of violence. The EU has proposed rewriting 12.2 to make it
broader and stronger than the WG's language: “States shall take the
necessary measures to ensure that medical and related interventions,
including corrective surgery, are not undertaken without the free and
informed consent of the person concerned.” (Moved and reworded from
Article 21(k)).

In the WG draft, 12.3 repeats 12.1. Therefore 12.3 should be deleted,
and the rest reworded to focus on information, as follows: “Such measures
shall include the provision of appropriate information to persons with
disabilities and their families.”

Although the EU agreed that forced intervention is illegal, there are
exceptional circumstances where it is appropriate. Therefore, the EU
suggested an addition 3 (bis): (i ) “States Parties shall accept the
principle that forced intervention of persons with disabilities is illegal,
save in exceptional circumstances in accordance with the procedures
established by law and with the application of appropriate legal safeguards.”
(ii) “The law shall provide that in any case of forced intervention
of persons with disabilities, the best interests of the person concerned
will be fully taken into account.” The EU supported 12.4 and 12.5. In
12.6, the EU suggested replacing “treatment” with “prosecution” because
this paragraph addresses the perpetrators of violence and abuse. In
addition, “as appropriate” should be moved to before “of protection
services” so it includes both protection services and judicial involvement.

Argentina proposed deleting the first sentence of
12.1 because it is redundant. In 12.2, it proposed deleting “abduction”
in favor of a clearer term. The terms "forced interventions"
and "forced institutionalization" are not clear.

Yemen agreed with the WG's draft of 12.5. This Convention
needs explicit remedies as stated in footnote 39.

Korea proposed to change 12.1 by adding “abandonment"
to the list of forms of violence and abuse in both sentences.

Jordan remarked that 12.3 is redundant because it
is included in 12.1 and should be deleted. It proposed adding “provision
of information” to 12.5 and adding “and their families” after PWD in
12.6. Forced interventions is an abstract concept, but people are concrete.
These decisions should be supported by counselors, not just judges and
lawyers in isolation.

China remarked that the first sentence in 12.1 of
the WG text sentence may lead to negative views of PWD. It suggests
using Article 19 of CRC as a guide and deleting 12.1 as drafted. With
regard to 12.2, forced intervention and institutionalization are important
issues, and the AHC should further discuss how to address them.

Bahrain proposed that 12.1 focus on institutional
mistreatment.

Costa Rica stated that the Spanish text in 12.1, 12.2,
and 12.3 include both physical and mental abuse, but the English version
does not include that distinction. It suggested inclusion of both in
all translations. It proposed that 12.3 (the provision of information)
be placed in 12.1. In 12.6, add after “protection services,” “adequate
deterrence and effective sanctions, including as appropriate, traditional
involvement.” This makes clear the need to apply sanctions when violence
is used as in CEDAW.

Japan stated that 12.2 mixes forced institutionalization
with medical treatment. If a person consents, then medical treatment
is fine. The EU proposal would clarify this.

Sierra Leone agreed with deleting the first sentence
and placing it in the preamble. It also supported deleting 12.2 because
this is already in 11.2. There is no need to address footnote 39 because
12.5 and 12.6 implicitly address remedies. Sierra Leone asked for clarification
as to whether "judicial involvement" in 12.6 means legal remedies.
It prefers to incorporate remedies into the Articles instead of describing
them in a separate Article. Alternatively, 12.5 could be amended to
add a provision for appropriate legal remedies.

Uganda stated that the first sentence of 12.1 should
not be deleted because it contains information that States need to understand
for the remedies that follow. Paragraphs 12.1 and 12.3 need to be harmonized.
In 12.4, the phrase “placed together, separate from others” may reinforce
institutionalization and segregation. It proposes replacing this phrase
with “where PWD’s live and access services.” A new paragraph at the
end should read: “States Parties reaffirm the rights of persons to make
a choice over their bodies and shall ensure PWDs are not subject to
sterilization or forced abortions.”

Kenya recommended a paragraph that takes into account
the fact that PWD are more likely to suffer rapes and maimings in situations
of armed conflict, given especially that PWD are seen as less likely
to be infected with AIDS. It proposed language whereby States Parties
recognize that armed conflict particularly undermine freedom from violence
and abuse of PWD, and shall take appropriate legislative, administrative
and other measures to protect PWD from armed conflict.

New Zealand proposed several amendments. The first
sentence of 12.1 can be deleted as had already been proposed provided
that it is moved to the Preamble. The references to exploitation in
this sentence and in 12.3, 12.5 and 12.6 should include “economic” exploitation
as well. The instances of “violence and abuse” mentioned n 12.6 should
specify the whole list of types of abuse as stated in the first sentence
of 12.1. In 12.3 “And education about how to avoid, recognise and report
instance of the above. SP shall also ensure those working with PWD that
are trained to identify and prevent such instances.” 12.4 should be
amended to include the need for monitoring and transparency: “Recognising
that PWD are more at risk of violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, including economic and sexual
exploitation and abuse in segregated policies and programs where persons
with disabilities are placed together, separate from other people, NZ
States Parties shall ensure that those facilities and programmes, both
public and private, are effectively monitored by independent authorities,
which include PWD, and the monitoring reports made available to the
public.” The following language should be added to 12.5: “Such recovery
and reintegration shall take place in an environment that fosters the
health, self-respect, dignity and autonomy of the person.“ These amendments
are based on the LSN Legal Analysis. 12.6 should focus on follow up
as treatment has already been dealt with and amended as follows: “States
Parties shall ensure the identification, reporting and investigation
of all instances of violence, injury and abuse, neglect or negligent
treatment, maltreatment or exploitation, and referral to the appropriate
protection agency, and where necessary to the courts.”

Volume 4, #4
May 27, 2004

Morning Session
Commenced: 10:13 PM
Adjourned: 1:02 PM

The Chair circulated a revision of Articles 1 and
2 that raised several procedural questions. Discussion of Article 12
was completed following 12 additional interventions remaining from yesterday’s
session based on both the original draft text as well as circulating
Mexican and EU drafts. Consideration of Article 15 was also completed.

Mexico had revised their draft of this Article taking
into account the recommendations made yesterday, except for New Zealand’s.
12.1 was divided into two paragraphs incorporating ideas put forward
by the Costa Rican delegation specifying “mental or physical” abuse
of PWD, and their “economic” exploitation. In the proposed new 12.2,
in addition to the notion of protection against abuse, the words “to
prevent these forms of violence and abuse” should be added after the
listing of “appropriate legislative, administrative, social, educational
and other measures to protect PWD and…” Revisions to 12.3 reflect their
Article 11 concerns regarding the special offense of “sequestering”
and abduction against PWD. Other changes involve judicial guarantees.
Mexico’s proposed new 12.6 incorporates the important idea of monitoring
visits to public and private sector facilities.

Serbia-Montenegro expressed support for the EU's proposed
Article 12 revisions, and for the NZ intervention stressing “economic
exploitation,” and the conditions and environment under which PWD subjected
to violence should experience recovery and social integration.

China reported resolution of its concerns yesterday
regarding Article 12 amendment statements, following post-meeting consultation
with the Secretariat and subsequent reflection in the conference overhead
screen display. China noted that even though different delegations may
propose the same amendments, they may have different grounds for these
proposals. China expressed the hope that in recording amendments, the
Secretariat can fully reflect the input of all delegations.

The Chair requested any delegation with concerns about
amended language displayed on the screen to approach the Secretariat
for verification. Proposed changes should be submitted to the Secretariat
in writing to assist in "fine-tuning" the document's wording.

Canada proposed two amendments to the current text
to ensure sufficient flexibility where necessary and so that appropriate
safeguards are in place. In 12.2, after “disabilities from” Canada proposed
the exception: “abduction, and save in exceptional circumstances according
to a procedure with appropriate safeguards established by law, intrusive
or forced.” The word “impairment” should be replaced by “disabilities.”
In 12.6, “ensure” should be replaced by “encourage,” due to states’
difficulty in ensuring identification and reporting of abuse when victims
prefer not to or refuse to report. Consistent with suggestions from
other delegations, “treatment” should be replaced by “prosecution.”

Norway supported previous speakers’ suggestions to
delete the first sentence of 12.1, which is preambular. 12.3 could also
be streamlined to avoid reiteration of 12.1.

Trinidad-Tobago noted the EU and latest Mexican proposals
regarding Article 12, and agreed with the need for streamlining to reduce
repetition. The EU’s proposal to delete the first sentence of12.1 would
remove recognition of the important fact that PWD are at greater risk
both inside and outside the home; therefore the revised Mexican proposal,
which retains the sentence, is preferable. The text should clarify whether
the provision for "protection services" refers to both perpetrators
and victims of violence and abuse; since the Article is for the protection
of PWD, it should focus on the needs of victims, but if the WG intended
to address both, this provision would be better placed in 12.4 of the
Mexican draft.

Eritrea suggested that the first three lines of 12.1
could be better articulated in the Preamble, and supported Mexico's
proposals to add to 12.1 the words “mental or physical" and “economic
exploitation."

Morocco expressed general agreement with 12.1, and
the willingness to work with other delegations streamlining the language
to avoid repetition or non-essential portions. Paragraph 12.4 deals
with monitoring of facilities and programs to prevent violence or abuse,
and is a very important part of this Article.

Ireland, on behalf of the European Union
(EU), supported various delegations' suggestions for moving the first
sentence of 12.1 to the Preamble. It is a fact that PWD are at greater
risk of violence, but states’ obligations to protect PWD from violence
regardless of the degree of risk should be made clear.

Sierra Leone stated that the first two lines of the
Article are important facts, and could either be left in the Preamble,
or placed as a chapeau for all the paragraphs, perhaps beginning with
"Recognizing that PWD are at greater risk, States Parties shall
take measures A, B, C, D, etc.”

Philippines recommended inserting “rehabilitation”
between “physical and psychological recovery” and “social reintegration"
in 12.5, because there “can be no reintegration into mainstream society
without rehabilitation.”

Trinidad-Tobago supported the revised Mexican proposal.
It appears that the WG's intent in 12.6 was to relate to both the perpetrator
and the victim. The concept of protection services should be contained
in one paragraph dealing with the interests of the victim. Thus, 12.4
of the new Mexican draft should be amended to read, “States Parties
shall take all appropriate measures to promote the physical and psychological
recovery and social reintegration of PWD who are victims of any form
of violence and abuse, including through the provision of protection
services. “ That concept should be deleted from from Mexican text 12.5.
In the EU proposal, as well as the latest Mexican text, the idea of
provision of support for PWD and their families, found in WG 12.3, has
been omitted. Thus, it is proposed that the last line of the Mexican
text’s 12.2 read, ”…ensuring, inter alia, support for PWD and their
families or caregivers, and the provision of information.” The phrase
“or caregivers” is added to provide for different societal structures
and contexts.

The floor was opened for comments from NGOs.

National Human Rights Institution insisted that Articles
11 and 12 should remain as separate Articles, because the focus of 12
is on abuse and violence, which occur far too often in the lives of
PWD. The Moroccan proposals regarding monitoring mechanisms should be
supported. New or existing monitoring mechanisms similar to national
human rights institutions could contribute immensely to monitoring the
violations articulated in Article 12.

Australia Disability, Inc., intervening jointly on
behalf of the National Association of Community Legal Centres of Australia,
People with Disabilities, Inc. Australia, and the Australian Federation
of Disability Organisations, strongly supported Article 12 content with
following amendments. Harassment, victimisation, emotional and mental
abuse, and economic exploitation should be added to the types of abuse
specified in 12.1, 12.3, 12.4, and 12.5. Violence and abuse -- especially
mental and emotional -- often go unrecognized. Inclusion in this document
will assist in highlighting these forms of abuse. The Article should
contain acknowledgment that PWD who are women, children, indigenous,
or have multiple and severe impairments are subject to even greater
levels of abuse. The Article should also address the systemic exclusion
of PWD from public programs, information and services, and should aim
to reduce exposure to violence in emergency, residential and other short-term
support services provided to persons escaping violent situations. The
Article should include a paragraph guaranteeing violence prevention
and relief services are fully accessible to PWD. The 12.1 phrase, “…in
and out of the home” should be replaced with “all aspects of life.”
The multiple Article 12 references to State responsibilities could be
consolidated in a new paragraph for clarity. A separate article should
deal with the human rights of PWD in emergency situations, such as refugees.

World Network of Users and Survivors of Psychiatry
(WNUSP) referred to its comments yesterday regarding the need, in Article
11, for strong language to prevent "forced institutionalization
and interventions to correct, improve, or alleviate any impairment."
WNUSP supported Liechtenstein’s argument for including this language
in both Articles 11 and 12. Article 11 addresses the need to eliminate
these types of intervention entirely, while Article 12 deals with the
fact that forced interventions can also take place in private institutions
by private individuals; therefore it should remain in both Articles
for the time being. Regarding the EU's comments comparing language in
Article 11 and 12 to that in Article 21, the latter’s language is from
the proposed Supplement to the Standard Rules. The phrase “medical or
related interventions” might be too vague for this kind of instrument.
Certain kinds of interventions are not necessarily medical. For example,
the abuse of a child with a disability “in the belief they are going
to get the devil out of him" would be covered by the proposed WG
text language, “forced interventions aimed at correcting any actual
or perceived impairments.”

Save the Children (SCF) agreed with Morocco and the
NHRI that violence should be addressed in its own Article, and supported
the statements made by Mexico and India. It reiterated SCF’s position
(available at www.savethechildren.org.uk) that children with disabilities
(CWD) must have the same protection as adults with disabilities because
of the added concern of corporal punishment. SCF proposed the following
additional sentence at the end of 12.1: “In addition, these measures
shall acknowledge the equal rights of children to protection from all
forms of violence and abuse.” It also recommended an additional paragraph
at 2.2: “States Parties shall take all appropriate measures to establish
child protection mechanisms which are accessible to CWD, including information
on accessing help, training of all relevant professionals, introduction
of child protection policies in all institutions, parent education programmes,
and safe reporting procedures.” Children with disabilities are vulnerable
to violence and abuse, and “have no way to report independently, and
if they report, they are at great risk.”

WNUSP added to its intervention, opposing the addition
of the exception proposed by the EU allowing for legalisation of forced
interventions under certain circumstances. Delegates should reject this
particular sentence.

Ireland inquired on behalf of the EU regarding the
Bureau’s procedure for circulating amendments to the draft text. With
regard to the latest version of “Proposed Modifications to Articles
1 to 11” dated 26 May 2004, the EU noted that its amendment to Article
7, for a new Draft Article 3 (bis), was not included even though there
was a substantive discussion that received support.

The Chair clarified that the Proposed Modifications
was a service of the Secretariat responding to delegations’ requests
to have all contributions during debate displayed on the Conference
screen and available in an accessible electronic format. The Chair consulted
with the Secretariat on the machinery to tackle the issue of the placement
of the EU amendments within the technical limitations of the Secretariat.
He noted that these consolidated proposals seek to “synthesise overlapping
or broadly similar proposals and to set out the range of options that
have been put forward.“ Where the consolidated text does not explicitly
include specific proposals it indicates where it substantially covers
them. In this case, the EU’s proposals might be more appropriately covered
in other draft articles. The Secretariat is following the WG structure
of the draft text and for this reason there is some difficulty incorporating
the EU proposals. The Proposed Modifications are technical, secretarial
drafting documents and have no substantive value other than to be an
aid to the negotiations. The Chair noted “There has been no limitation
on what a national or NGO delegation has said in this hall, and I think
that is a recognition of the transparency and democracy of the United
Nations system.”

Ireland noted that since its modifications to Articles
4 and 5 had been incorporated it would expect those in relation to Article
7 to be incorporated as well, given that they represent the position
of a large group of countries. Ireland also inquired whether any “formal,
coordinated, informal discussions” were taking place. Finally, it sought
clarification on the status of the “non-paper” on Articles 1 and 2.

The Chair was not aware of any coordinating exercise
under the guidance of the Chair, only of EU and other similar regional
coordination. He affirmed the EU’s reference to the document on Articles
1 and 2 as a “non-paper.”

Norway inquired whether the non-paper on Articles
1 and 2 was intended to be the basis for any possible further negotiations
on this paragraph if time allows at end of this AHC.

The Chair emphasised that the basis of the AHC discussion
is the WG document, according to the Legal Department of UN. Therefore
the document on Articles 1 and 2 is only a “non-paper” that will “conduct
us to informal consultations” upon completion of a first reading of
the WG text. This might move the process faster.

Sierra Leone was unclear at the notion of a first reading.
He inquired as to where the attention of the AHC was now focused - on
the non paper or on the footnotes of the WG text, highlighting the fact
that Draft Article 1 in the non paper was entirely different from what
the WG proposed. He reminded the delegations that the footnotes in the
WG text are not arbitrary inclusions, but there for guidance.

Trinidad and Tobago addressed the EU’s concern about
the coordinator of discussions and asserted that there are no formally
coordinated and formal discussions taking place.

The Chair noted that there have been other elements
added to the WG text in this larger plenary of the AHC. Informals will
be conducted on the basis of the WG text and on the inputs of all other
delegations. He clarified that New Zealand is the coordinator of discussions.

Mexico suggested that in order to avoid speculation
about the text, the Committee should do a first reading of all substantive
Articles and then do a second round of more detailed consideration of
the Articles in conjunction with NGOs.

Malaysia expressed strong reservations about the possibility
of having separate discussions or negotiations during the plenary meetings,
and expressed appreciation for the transparency and full participation
in the meetings so far.

The Chair called the Vice President from the Philippines
to preside while the Chair withdrew to consult with delegations. The
Chair reaffirmed that this is a technical document and that the Committee
is working in a transparent venue.